Have you signed up?

If you’re an attorney who wants to know Everything about Everything, then you want to sign up for the SC Bar CLE entitled “Everything You Want To Know About Everything.”

It will be held LIVE in Columbia at the USC School of Law Auditorium, Columbia, South Carolina and via video-CLE Satellite at the following 11 locations around the state:

The speakers will cover topics from Sentencing to DUI to Self-Represented Litigants to Ethics. I hope to see you there!

-RFW

Cast your vote re: ghostwriting

I’ve received the following email 3 times. It’s time for me to share!

Following an article published yesterday, titled Kansas Ethics Opinion Requires Disclosure on Ghostwritten Pleadings, the ABA Journal has created a poll on ghostwriting.  Visit the site at www.abajournal.com to cast your vote in the poll “Is Ghostwriting Legal Documents Ethical?”.

Scroll down the screen to see the poll, which is located on the right side of the home page.  We’re not sure how long the poll will be open, so be sure to vote today.

This issue is particularly relevant for those of us interested in limited scope representation.

Limited scope representation varies state by state, but generally, it allows attorneys to provide a discrete service and is considered by many to increase access to justice – due to reduced costs for legal services.

A litigant or client may pay for someone to write a letter on their behalf or write their court documents, but complete their legal representation at that point.

Ghostwriting is when the attorney writes the documents for the client. In some states, the attorney does not have to sign their name; in others, it is mandatory.

What do you think? Case your vote at www.abajournal.com.

-RFW

Craigslist and Legal Services?

craigslist2

 

This is a referral post to both technola and the ABA Journal. Technola for its post about Craigslist and referral to the ABA Journal’s post requesting comments from readers about whether they’ve used Craigslist to advertise.

I’ll be following the findings.

-RFW

Afterthought: Is anyone monitoring attorney advertising rules and ethics on Craigslist?

More SRLs: Are Lawyers too Costly or Simply Sign of Hard Times?

That’s the question coming out of Connecticut this week, see Connecticut Law Tribune article here. Whatever the answer, the numbers of Self-Represented Litigants or SRLs is on the rise. The trend isn’t limited to Connecticut either. Recent conversations with family court judges, clerks of court and masters-in-equity have indicated that South Carolina is also part of the trend.

The challenges faced by other court systems also mirror what is happening in South Carolina. SRLs are not familiar with procedures to meet minimal requirements such as notifying the other party or service of process. Even if they meet procedural requirements they may not understand some of the documents themselves. They may not even complete all the necessary forms.

Additionally, attorneys have a reputation for using their own language, also known as legalese. The phrases in legal documents often are in Latin, not English. The South Carolina Access to Justice Commission is working with the courts to ensure that court documents are written in Plain English whenever possible.

Clerks of Court in South Carolina have also noted the rise in SRLs. Members of the public often ask for forms, then ask for help completing them. Or they may ask for advice from the clerk of whether to bring the action. Clerks are wary of responding – not because they don’t want to help, but because they don’t want to overstep into the practice of law – the unauthorized practice of law. In South Carolina, there are established laws indicating that only attorneys licensed in South Carolina may practice law in South Carolina. Legal advice is considered the practice of law. The South Carolina Access to Justice Commission is also working to address this question by developing signage clearly indicating what clerks can and cannot do. And the Commission is working with a clerk of court work group to educate clerks and the general public about the fine line between advice and information.

Judges note that they too have ethical dilemmas. When SRLs appear in their courtrooms and miss relevant pieces of their cases, the judges want to help but they too have boundaries. They may not help one side to the detriment of another.

SRLs have arrived and South Carolina is working to address the issue of increased numbers of SRLs in the courts.

But it may take a little while.

Thanks for your patience.

-RFW

Guest Blogger: Marvin H. Feingold

GUEST BLOGGER:

marvin-feingold

Editorial- By Marvin H. Feingold, Esq.

 

Thank you SC Access to Justice and Justice Toal for an informative and enlightening discussion on the obstacles to pro se litigants in South Carolina courts.  At Charleston Pro Bono Legal Services, serving Charleston County low income residents, we have established procedures that address your concerns. We also have ideas for providing pro bono attorneys to further all residents’ ability to effectively advocate on their behalf.

  

We agree that in Family Court and Magistrate court, a litigant going pro se is at a decided disadvantage.  Even with access to pleadings, a great deal of explanation is necessary for her to properly present a case.  With that in mind, we at Charleston Pro Bono have established a process wherein Charleston School of Law students prepare pleadings for each case; pro bono attorneys then, meet with the client to walk her through the process.  Our office is on call to answer questions at all stages.

 

Self-help is a necessary and effective method of helping to bridge the Justice gap. The development of efficient and effective avenues of self help requires the full commitment of Court Clerks, Judges, Bar Associations, legislators and attorneys. Also necessary, are efforts to streamline court procedures and to make them more pro se friendly. Something along these lines was done last May when Justice Toal Ordered that pleadings in Family Court may be filed In Forma Pauperis without the need to wait for a Motion to be granted before filing. If the IFP is later denied, the party then has 30 days to pay the filing fee. Another example is the statutory provision which allows visitation to be enforced pro se simply by presenting an affidavit to the Clerk of Court.

 

Adjusting the procedural infrastructure to make it more pro se friendly should be considered in the rule-making and legislative processes. Such adjustments of procedure should be informed by the thinking and experience of other States as well as academics who study the subject. The Access to Justice Commission should serve as a clearinghouse for information about self-help developments and also as a leader in promoting policies of Courts which make “going pro se” more workable into the future.

 

 Currently, the South Carolina Bar maintains, on its website, a “how to self represent” in a simple 1 year separation divorce including forms and specific instructions and a “script” for appearance in Court. Pro Bono Legal Service and South Carolina Legal Services, both conduct regular “pro se clinics” in which clients are given personal advice on how to proceed pro se in simple divorce cases. The SC Supreme Court and Charleston County Courts also maintain some legal forms which pro se litigants can access although there is little guidance given as to their use.

 

In addition to simple divorces, Charleston Pro Bono Legal Services has, had success with the following cases which have been handled pro se.

  • Uncontested custody actions
  • Paternity and visitation actions
  • Actions by a parent to recover custody after removal
  • Petitions for Modification of Child Support

Another aspect of pro-se assistance deals with a side of this dynamic subject which has received relatively little examination, namely, Defensive pleadings to avoid default in Common Pleas and Magistrates Court. Specifically, at Charleston Pro Bono, Answers and even Counterclaims have occasionally been ghostwritten for pro se litigants. Such “unbundled” assistance should be recognized as a legitimate function for a lawyer to perform. How much and what kind of advice is appropriate when preparing such a pleading. What ethical considerations apply? What follow-up and/or continuing guidance is appropriate?

 There is little doubt that pro-se litigation will continue to be an important factor in the mix of resources available to low-income people in South Carolina. A  course of inquiry most appropriate to the Access to Justice Commission would in my opinion be: What does the future hold for this device? What types of matters lend themselves to pro se treatment? What are the ethical implications for lawyers assisting clients to proceed pro se? How much should a lawyer be involved in a pro se litigant’s case? What sort of follow-up and/or continuing guidance is appropriate? What about Ghostwriting of pleadings for the pro se litigant? How can Courts, Clerks of Court, bar associations and individual attorneys cooperate to maximize the benefit to all of such a device and lastly, what statutory or rules changes are advisable?

 

All of this effort toward self help may be enhanced through an emphasis on client legal education. “Law schools for non-lawyers” presented by various attorney organizations, courses offered by our community colleges, adult education courses and work done by Legal Services Programs to distribute information about the workings of our legal system may be our first line of defense against injustice in the civil courts.

 

As to the idea of having a Kiosk at the court house, “confidentiality” and “avoiding conflicts” would seem to be the major problems with having Attorneys occupy the kiosk. An “ask a lawyer” model could incorporate the Kiosk idea by having an intake worker available at the courthouse and a list of attorneys on call during specific hours to answer questions. Some sort of “pro se” assistance is however needed, especially at Family Court.

 

 

-Mr. Feingold is the Pro Bono Director of Charleston Pro Bono Legal Services and is licensed to practice law in South Carolina. For more information about Charleston Pro Bono Legal Services visit http://www.probonols.org/.  Not affiiliated with the South Carolina Bar Pro Bono Program.

Clerks of Court Plan for Public Access

The South Carolina Access to Justice Commission’s Clerk of Court Work Group met on Friday, September 26, 2008, to discuss ways to implement access to the courts without crossing ethical boundaries. Dean Robert M. Wilcox of the USC School of Law provided ethical training for the clerks including a Q&A session.

Q&A with Dean Wilcox
Q&A with Dean Wilcox
Dean Wilcox discusses ethics
Dean Wilcox discusses ethics

Dean Wilcox noted that ethical guidelines have been put in place to protect the public from advice that causes them to rely on and change their legal position. He cited a few legal cases and also gave practical information to the clerks.

Clerks discuss issues 9-26-08
Clerks discuss issues 9-26-08
Ethics - Serious Topic
Ethics - Serious Topic

Afterward, Robin Wheeler and Stephanie Nye provided updates about signage to post in the courthouses and the Frequently Asked Questions survey.

 

Robin Wheeler discusses progress on signage
Robin Wheeler discusses progress on signage
Stephanie Nye gathers the FAQs
Stephanie Nye gathers the FAQs

During lunch, the clerks divided into two subgroups – Circuit Court and Family Court. In each of these subgroups, the clerks discussed next steps and initiatives.

Circuit Court subgroup discusses important issues
Circuit Court subgroup discusses important issues

 

Family Court subgroup discussion
Family Court subgroup discussion
The group will continue to meet and discuss access for all South Carolinians.
-RFW

SC Access to Justice Returns Home Wiser

Richard Zorza, self-represented litigant guru, and Stephanie Nye
Richard Zorza, self-represented litigant guru, and Stephanie Nye

The delegation from the South Carolina Access to Justice Commission returned to South Carolina yesterday from the Court Solutions Conference in Baltimore. The conference was informative and educational. The track pertaining to self-represented litigants offered 15 modules to choose from. The plenary sessions for self-represented litigants offered general information about each of the modules while allowing for an intensive focus on the specific. Many states offered information about initiatives and were willing to share ways to move forward to ensuring access to justice for all.

Desiree Allen, Stephanie Nye, Judge Deadra Jefferson, Judge Michael Baxley, Ellen Osborne
South Carolina Delegation: Desiree Allen, Stephanie Nye, Judge Deadra Jefferson, Judge Michael Baxley, Ellen Osborne

Each state was asked to briefly describe what they are proud of and what they want to learn from other states. The South Carolina state report was:

Judge Jefferson compares notes with Judge Lora Livingston out of Texas
Judge Jefferson compares notes with Judge Lora Livingston out of Texas
  • South Carolina is proud of: (1) completing public hearings where we identified problems faced by self-represented litigants; (2) completing initial judicial and clerk of court trainings where we featured the public hearing video from self-represented litigants describing their experiences; (3) providing ethical training to summary court and clerks of courts when working with self-represented litigants; and (3) completing and distributing the Bench Guide to summary court judges.
  • South Carolina wants to learn from others: (1) ways to build strong library partnerships; (2) ways to enhance partnerships and collaboration with other entities such as Legal Services, Community organizations, etc.; and (3) information about successful self-help centers.
Robin Wheeler interviews Judge Bell of Maryland